R v P J B [2007] VSCA 242

2 The appellant now appeals with leave against the sentence on grounds that:**

1. The judge erred in substituting a sentence of 43 months with a non-parole period of 24 months for a sentence of 43 months with 19 months suspended for three years, thereby failing to heed the prohibition imposed by sub-s 5(2AA) of the Sentencing Act 1991 that the court must not have regard to the possibility that the length of time actually spent in custody by an offender may be affected by executive action of any kind.
2. The judge erred in failing to give appropriate effect to the fact of the appellant's age at the time of the offences and in particular that, if the appellant had been sentenced at the time of the offences, he would have been sentenced as a child or in some cases as a young offender.
3. That the sentence is manifestly excessive.

**3 The offences were committed in the appellant's family home at Clayton in the period between March 1977 and 1 December 1982 when the appellant was aged between 13 and 19 years. The victim, who was one of the appellant's sisters, was aged between six and twelve years.[2]

4 The offence the subject of count 2 was committed between March 1977 and December 1978, when the appellant was 13 or 14 years of age and the victim was approximately seven years of age. She was in the lounge room of the family home with a number of other siblings watching television. The lights in the room had been turned off, with the only light coming in from the kitchen. The victim was sitting on a couch wearing a nightgown with knickers underneath. The appellant sat down in front of the couch in a position near to where she was seated. He put his hands between her legs and pulled her knickers to one side, and then inserted his finger into her vagina. She attempted to push him away and eventually succeeded in doing so.

5 The offence the subject of count 3 was committed between March 1977 and December 1978, when the appellant was 13 or 14 years of age and the victim was aged seven or eight years. The victim was in the bathroom taking a bath. The appellant entered the room and subsequently lathered up the victim's vagina with soap and inserted his finger into her vagina.

6 The offences the subject of counts 4, 5 and 6 were committed between March 1978 and December 1979, when the appellant was aged between 14 and 16 and the victim was between seven and nine years of age. On an occasion when the victim was in her bedroom sorting through a pile of washing, the appellant entered the room and pushed her on to the pile, causing her legs to hang over the side of the bed. He lifted up her school dress and pulled her knickers to one side. He then inserted his finger into her vagina (count 4). The appellant withdrew his finger and smelt and then re-inserted it (count 5). He then removed that finger again and inserted a finger from his other hand into the victim's vagina (count 6). The victim stated in her evidence that the appellant's actions hurt her, because on that occasion he was penetrating deeper than before. The appellant stopped when interrupted by another sister entering the room.

7 The offence the subject of count 7 was committed between July 1979 and February 1981, when the appellant was between 16 and 17 years of age and the victim was approximately eight or nine years of age. The appellant was in the bath with the victim and their other two sisters. The other two sisters left the room. The appellant grabbed the victim's arm and put her hand onto his penis. He then told her to move her hand up and down. She told him that she did not want to, but the appellant did not let go her hand. He ejaculated into the bath water and the victim recalled sperm getting on to her hand.

8 The offence the subject of count 8 was committed between March 1981 and December 1982, when the appellant was 18 or 19 years of age and the victim was approximately ten years of age. The appellant drove the victim to her doctor. The victim was seated in the front passenger seat of the vehicle. She was wearing a skirt. The appellant kept trying to place his hand up her skirt, but she kept turning her legs away. He tried three or four times by placing his hand between her legs, but the victim kept pushing his hand away. Eventually he became angry with the victim and desisted.

9 Finally, the offence the subject of count 9 was also committed between March 1981 and December 1982, when the appellant was 18 or 19 years of age and the victim was approximately ten years of age. The victim was in the bathroom taking a bath and had locked the door by fastening it with a hook and eye latch. The appellant slid an envelope between the door and the jamb, lifted the latch and opened the door. He entered the bathroom, leant over the bath, and inserted his finger into the victim's vagina.

10 The victim was not a willing party to any of the appellant's offending and she invariably told the appellant to desist from the unwanted activities. The appellant repeatedly told her, however, that if she told their parents about the sexual abuse she would get into as much trouble as he would.

11 In 1986, when the victim was in year 10 at school, she approached a teacher about what the appellant was doing to her. The teacher referred the matter to the vice-principal and the appellant's parents were informed. The school arranged for counselling for the victim and the appellant received counselling at the suggestion of his parents, but no further action was taken. When the victim was 18 or 19 years of age, the appellant apologised to her for what he had done, and for some time after that the appellant and the victim enjoyed reasonable family relations. In more recent times, however, problems emerged and in October 2004 the victim referred the matter to the police. The appellant was arrested and interviewed on 5 July 2005, but by and large gave "no comment" answers.**

**12 When imposing sentence on the appellant, the judge at first ordered that the total effective sentence of 43 months be suspended in part as to 19 months for a period of three years, thereby making for an immediate term of imprisonment of 24 months. Then, after a brief adjournment, counsel reminded the judge that the effect of sub-s 27(2A) of the Sentencing Act 1991 is that it is not possible to suspend the whole or part of a sentence of greater than three years' duration, and defence counsel submitted that "the nearest equivalent manner of achieving such a result would appear to be by using s 11 and imposing a non-parole period". The judge said that he agreed with that course and immediately vacated the direction as to suspension and set a non-parole period of 24 months. Neither counsel demurred. Now, however, it is contended by counsel for the appellant that the judge erred by assuming, contrary to sub-s 5(2AA) of the Sentencing Act 1991, that the appellant would be released on parole on completion of the non-parole period.

13 In my view, that argument should be rejected. While it is true that one must approach the task of sentencing on the basis that the prisoner may be required to serve every day of the head sentence, the process of setting a non-parole period is in some respects not dissimilar to concluding that some part of a sentence should be suspended. As was said by the High Court in Power v The Queen:**

confinement in a prison serves the same purposes, whether before or after the expiration of a non-parole period, and throughout it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense, the non-parole period is the minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.[3]

14 There is, of course, the difference between a partially suspended sentence and a non-parole period that, with the former, the prisoner may be certain that he will not be required to serve an immediate term any longer than is set. There may also be practical differences associated with the need to report and supervision. But there is no reason to doubt that the judge, who was an experienced criminal trial judge, approached the matter on that basis. Apparently his Honour considered that the requirements of just punishment, deterrence and denunciation necessitated that the appellant serve not less than 24 months' immediate imprisonment. Presumably, the non-parole period which his Honour set was calculated to achieve that result. [4]

Ground 2 Failing to give appropriate weight to appellants age at time of offending

**15 The appellant argues in the alternative that the judge erred in failing to give appropriate effect to the fact of the appellant's age at the time of offending. In particular, counsel for the appellant submits that the judge failed to take into account that if the appellant had been sentenced at the time of offending, he would have been sentenced as a child or, in the case of some of the counts, as a young offender; that his moral culpability would have been judged to be less, particularly in the case of the offences committed whilst he was a child; and that great weight would have been given to maximising his prospects of rehabilitation, with the result that he may have been sentenced to either custody in a youth training centre or been given a non-custodial sentence.[5] Further, counsel points out that although the judge stated in his sentencing remarks that he took into account the appellant's youth at the time of offending, and that if the matter had come to light at that time he would have been sentenced in the Children's Court at least in respect of the earlier offences, the judge also said that general deterrence "must be an important sentencing consideration for this court" and that the offence the subject of count 9 was committed when the appellant was "of full age" (when in fact, at the time of the commission of that offence, he was a young offender for the purposes of the Sentencing Act 1991).[6] In counsel's submission, those two statements were errors which demonstrated that the judge did not give appropriate weight to the appellant's age at the time of offending.

16 In my view, there is more force in those submissions. Decisions of this Court in R v Nutter[7] and R v Better[8] recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.

17 Counsel for the Crown does not really contend to the contrary but rather submits that the sentence imposed by the judge accords with those considerations. He argues that although the appellant's criminality in respect of the earlier offences, (scil. when the appellant was aged between 13 and 14 years of age) may not be seen as especially heinous, the later offences, particularly those committed when the appellant was 18 or 19 years old and his sister was only eleven or twelve, were on any analysis serious criminal offences requiring a sentence adequate to reflect denunciation, general deterrence and just punishment, and thus warranting substantial imprisonment. Thus, in his submission, there is no error evident in the way in which the judge went about synthesising the sentence.

18 I accept the Crown's argument up to a point. I should say that the sentences imposed on counts 2 and 3 appear to me to be harsh, given that the appellant was only 13 or 14 years of age at the time of commission of those offences. But I allow, as the judge observed, that those counts were not isolated acts but rather part of a continuing course of offending and that the sentences might perhaps be seen as justified on that basis.[9] The other individual sentences fall more or less within the range that one might expect in order to give effect to the considerations to which I have referred and, significantly, they accord with the individual sentences imposed in R v Better in which the circumstances of offending and delay before prosecution were remarkably similar.

19 Contrastingly, however, when it comes to the orders for cumulation, it appears to me that the judge has given very little if any weight to the fact that these offences were committed when the appellant was either a child or a young offender, and hence to his reduced moral culpability, or to the significantly reduced role which general deterrence would be likely to have played if the appellant had been sentenced at that time. For assuming that the appellant had been dealt with shortly after the last of the charged offences, it is I think not at all improbable that he would have been seen as a candidate for a youth training centre order of no more than three years' duration. If so, a total effective sentence of 43 months after more than 24 years without further offending is ex facie incongruous.**

**20 Counsel for the appellant argues, in any event, that the total effective sentence and the non-parole period were manifestly excessive, and in support of that contention he submits that the judge failed to give adequate weight to the fact that the appellant has not re-offended and has led an upright life during the 24 years since the offending occurred, that he had apologised to the victim and undergone counselling, and had a reasonably cordial relationship with her thereafter, the sentence would have a substantial impact on the appellant's employment and social activities in the community, irrespective of whether he received a custodial sentence, and that the judge gave undue emphasis to the harm experienced by the complainant and the family's attitude towards the complainant.

21 In large part I agree. For the reasons already given, I accept that a total effective sentence of 43 months' imprisonment ill accorded with the sentence likely to have been imposed if the appellant had been dealt with without delay. I also accept that the substantially greater sentence which the judge imposed did not sufficiently recognise that, at the time of the sentencing, more than 24 years had passed since the offending without the appellant re-offending, especially given the judge's finding that the appellant had excellent prospects of rehabilitation and was unlikely ever to re-offend. In effect, the appellant had used the intervening quarter of a century to remake himself into a useful member of society. In those circumstances, I am unable to follow the logic of imposing a substantially greater sentence than would have been imposed before that improvement had occurred.

22 Of course, it does not follow that the same considerations apply in all cases of sexual offences where offending is not exposed until long after the event, or even in**

all such cases where the offender has been substantially rehabilitated in the meantime. As Vincent JA explained in Director of Public Prosecutions v Toomey,[10] ordinarily where an adult offender is to be sentenced for offences involving the sexual abuse of a young person, the principles of general deterrence and denunciation remain at the forefront of the sentencing process no matter how long ago the offences may have been committed. But, for reasons I have already explained, it is different where the offender was a young offender at the time of offending and has been rehabilitated in the meantime. Prima facie general deterrence and denunciation do not play the same role in the sentencing of young offenders, and in my view it would be illogical and unfair to lose sight of that when it comes years later to sentencing the offender as an adult. As Buchanan JA put it in R v Better,[11] the lapse of time since the commission of the offences and the rehabilitation effected by the appellant militate against the imposition of a sentence longer than that which is proportionate to the gravity of the offences in order to protect the community from the appellant.

23 In my judgment, given the time which has elapsed since the commission of these offences, and the way in which the appellant has behaved since then, the sentence should have been considerably less and a substantial part of that lesser sentence should have been suspended.

24 In the result, if other members of the Court were to agree, I would quash the sentence passed below and re-sentence the appellant on counts 2 and 3 to 12 months' imprisonment, on each of counts 4, 5 and 6 to 15 months' imprisonment, on count 7 to 18 months' imprisonment, on count 8 to nine months' imprisonment, and on count 9 to 30 months' imprisonment. I would order that one month of the sentence imposed on count 2, two months of each of the sentences imposed on counts 4 and 6 and one month of the sentence imposed on count 8 be served cumulatively on each

other and on the sentence imposed on count 9, making for a total effective sentence of three years' imprisonment. I would further order that the entire sentence, except for the period already served, be suspended for a period of two years.

25 For the reasons given by the learned presiding judge, with which I entirely agree, I am of opinion that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

26 I only add the following. The reasons for sentence show that the learned judge below was evidently very concerned about the described immediate and long-term effects of the appellant's offending upon the complainant - understandably, and rightly so; but in considering what sentence should be passed, it seems to me that his Honour permitted this consideration to dominate his thinking and to unduly colour his assessment of the numerous matters which fall for consideration in the sentencing process. I agree with the submission of counsel for the appellant that his Honour's sentencing remarks appear to lack balance. In particular, I respectfully consider that his Honour seriously undervalued the youth, to a greater or lesser extent, of the appellant at the time of his offending, and in that context undervalued the extent of the appellant's moral culpability and over-emphasised the place of general deterrence in the particular sentencing exercise. That seems to me to be reflected, for example, in his Honour's conclusion that the appellant's offending "must be placed towards the upper end of the range of offences of this nature, that is to say, indecent assault on a child/person under the age of 16"; and in his remarks within the same paragraph of his reasons that the element of general deterrence must be an important sentencing consideration, though the judge was at the same time cognisant that at the time of the commission of the offences the appellant would have been aged between 13 and 19.**

27 I agree with the disposition proposed by the learned presiding judge for the reasons his Honour has stated.

28 PJB, would you please stand up? I am required by the Sentencing Act to explain to you that the court is proposing to make an order reducing your term of imprisonment to three years and suspending all of it, except for the time you have already served, for a period of two years. The consequence of that order will be that you will be released immediately, but if within the next two years you commit an offence punishable by imprisonment, either inside or outside Victoria, you may be brought back before the court and the part of the sentence which has been suspended may be restored, so that you would be required to serve up to the remainder of the three years' imprisonment. Do you understand?**

The sentence imposed on 31 October 2006 is quashed. In lieu thereof, the appellant is sentenced as follows:

One month of the sentence imposed on Count 2, two months' of each of the sentences imposed on Counts 4 and 6 and one month of the sentence imposed on Count 8 are to be served cumulatively on each other and on the sentence imposed on Count 9, making for a total effective sentence of three years' imprisonment.

The entire sentence except for 372 days shall be suspended for a period of two years.

Pursuant to s.27(2B) of the Sentencing Act 1991 it is declared that, having regard to the nature of the offences, their impact on the complainant, and any loss or damage resulting from the offences, the court considers that a sentence of three years' imprisonment wholly suspended except as the time which has already been served is adequate to manifest the denunciation by the court of the type of conduct in which the appellant engaged; adequately deters the appellant or other persons from committing offences of the same or a similar character; and reflects the gravity of the offences, and it is directed that the fact of this declaration and its contents be entered in the records of the court.

**Pursuant to s 6F of the Sentencing Act 1991 is declared that the appellant has been sentenced in respect of Count 4 to 9 as a serious sexual offender and it is directed that the fact of the declaration and it contents be entered in the records of the court.

Pursuant to s18 of the Sentencing Act 1991 it is further declared that the period which must be reckoned as a period of imprisonment or detention already served under the sentence is 372 days as of this day, and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

The order made below for registration of the appellant under the Sex Offenders Registration Act 2004 is confirmed.**

[1] The jury were unable to reach a verdict on further counts of carnal knowledge (Count 10) and incest (Count 11).

[2] The appellant is now 44 years of age and the victim is now 36.

[3] [1974] HCA 26; (1974) 131 CLR 623, 628.

[4] The Queen v Bugmy [1990] HCA 18; (1990) 169 CLR 525, 530-1; R v VZ [1998] VSCA 32; (1998) 7 VR 693, 698 [18] (Callaway, JA).

[5] R v Mills [1998] 4 VR 235, 241.

[6] Sentencing Act 1991, s 3.

[7] Unrep, 8 November 1995 (Charles and Callaway, JJA and Vincent, AJA).

[8] [2003] VSCA 71 (Charles, Buchanan and Vincent, JJA).

[9] Godfrey v R (1993) 69 A Crim R 318, 322-3 (Duggan, J); R v SBL [1998] VSCA 144; [1999] 1 VR 706, 710 [18] (Phillips, CJ) and 726 [70] (Batt, JA).

[10] [2006] VSCA 90[17] and [23]-[24].

[11] [2003] VSCA 71[13].